What is the easiest way to find information on your website?

Go directly to the Search Bar which can always be found on the home page, and type in any unique key words. You should be directed to the page that contains the information you are seeking. Some of these pages are cross-referenced to other relevant pages.

 

How often do you add to your frequently asked questions and articles?

We add to our FAQ and Articles several times each month and we update as needed. This is a top priority for our company.

 

What will you need to get started?

We will need three things to start: (1) A copy of the document to be replaced or amended; (2) A signed agreement that we will provide you; and (3) A Zoom consultation so we can discuss your needs and preferences. Call us any time, so we can answer any questions and discuss the process. See: Email Us - Get Started.

 

How are CC&Rs defined?

A Declaration of Covenants, Conditions, and Restrictions is also referred to as CC&Rs or as a Declaration. It is a recorded document that includes the legal description of property and a statement that it is a community apartment project, condominium project, planned development, or stock cooperative. The CC&Rs must also set forth the name of the association and the restrictions on the use or enjoyment of the property. Unlike bylaws, which address the governance of the association, CC&Rs describe the property rights and obligations of the members, such as (1) restrictions on the use of property, (2) member and association maintenance obligations, (3) enforcement powers, (4) lender protection provisions, (5) assessment obligations and lien/collection rights, (6) the duty to insure, and (7) dispute resolution and attorney fees provisions.

Covenants are promises to comply with the governing documents and pay assessments. The buyer does not sign an agreement making a promise to the company with the documents; the promise is imposed on the buyer as an equitable servitude that runs with the property and is fully enforceable against the owner of the property. A positive covenant is a promise to do something, while a restrictive covenant is a promise not to do something.

Conditions in governing documents, contracts or agreements can suspend, rescind, or modify an obligation. An event must take place before a party must perform their obligation. There are very few if any real conditions in CC&Rs.

Restrictions are limitations imposed on owners on the use of their property. For example, restrictive covenants often limit the number and kinds of animals an owner may keep, the alterations they can make to their property or the number of vehicles they can park. The purpose of restrictions is to maintain property values as well as order among neighbors. They also have the effect of conferring rights on owners. For example, restrictions on the height of trees protect views for owners.

CC&R provisions are presumptively valid, and the burden of proving otherwise rests on the challenging owner. Also, because CC&Rs are recorded, members are deemed to have constructive notice of the restrictions whether or not they received them in escrow or whether or not they read them.

A recorded Declaration of Covenants, Conditions, and restrictions (CC&Rs) serves as constructive notice of the restrictions contained in the document. Actual notice consists of express information of a fact. Constructive notice means notice given by the public records. With constructive notice, people are presumed to know the contents of recorded instruments. Constructive notice is the equivalent.

 

Who is the Declarant?

The Declarant is the person or entity that creates the original governing documents for an association. The Declarant is generally the developer of the development and usually reserves certain rights and powers to himself related to the sale of units in the project including extra voting rights. The Davis-Stirling Act defines the Declarant as follows: "Declarant" Means the person or group of persons designated in the declaration as declarant, or if no declarant is designated, the person or group of persons who sign the original declaration or who succeed to special rights, preferences, or privileges designated in the declaration as belonging to the signator of the original declaration. Most associations will restate their CC&Rs to eliminate all references to the Declarant, eliminate all legalese, and add important provisions found in the Davis - Stirling Act.

 

Can a condominium be a detached home?

Yes. While condominiums are usually attached, they can also be detached, freestanding homes. A condominium is a form of ownership and a type of common interest development. It often surprises homeowners to learn that their detached home is a condominium and that they do not own an individual lot. When someone owns a detached condominium, all of the homes are usually located on one or a few lots and what appears to be an individual lot is actually an area over which a unit owner has an exclusive or non-exclusive easement. The only way to determine the type of ownership is to read an association's CC&Rs and condominium plan or tract map.

 

What are the governing documents of a homeowner association?

The governing documents include the CC&Rs, Condominium Plan, Bylaws, Articles of Incorporation, and Operating Rules.

 

What exactly are CC&Rs and how are they different from Bylaws and Operating Rules?

CC&Rs or Covenants, Conditions, and Restrictions; Bylaws; and Operating Rules are all governing documents with distinct legal definitions. See: CC&Rs, Bylaws, and Operating Rules.

 

Our HOA receives one invoice from the water company that is paid by the association each month. Some condominium units are one-bedroom units while others are two and three-bedroom units. Some units have a single resident while others have as many as five residents. The square footages also vary. Obviously, some units consume more water than others, but we all share equally in the cost. This is unfair and important because water and sewer fees have increased dramatically since 2021. Is it possible and practical to have our CC&Rs amended so that every unit receives a billing based on the number of bedrooms and/or the number of residents?

Yes. The water company would continue to be paid by your association while the association would bill each unit for a share of the overall water bill. Not only does this create fairness, it also increases the value of every unit other than the smallest units. In addition, it eliminates the cost of separately metering the entire property. Contact us for further information about amending or restating your homeowner association's CC&Rs.

 

We are unable to locate the Condominium Plan for our homeowner association. What can we do?

The Condominium Plan is a very important component of your association's governing documents because it is often the only means of accurately determining the dimensions of the common area and individual units. Also, sometimes mortgage lenders and insurance companies ask to review this important document. There are two places to search for an association's Condominium Plan: (1) Run a title search to obtain a copy from the County Recorder's Office, or (2) Check with the California Department of Real Estate (DRE). Condo Plans are required to be recorded and filed with the DRE.

 

Who creates the initial CC&Rs for a homeowner association?

The initial CC&Rs are created by the developer of the property. An attorney will draft the document which must include the requirements of the California Department of Real Estate (DRE) in addition to anything the developer wants to include that is not prohibited by law. After the CC&Rs are approved by the DRE and recorded, any restatements and/or amendments must be approved by the membership.

 

Does your firm draft governing documents for developers who are building condominiums in California?

Yes. We can provide CC&Rs, Bylaws, and Operating Rules to developers that meet all DRE requirements. Call or email if you need a proposal. We can also refer you to an experienced HOA management company that can provide you with an HOA management proposal at a very competitive price. We do not prepare DRE Budgets or Condominium Plans.

 

What laws are involved in the regulation of common interest developments in California?

The laws are: (1) the Subdivision Map Act. This is part of the California Government Code, (2) the Davis-Stirling Common Interest Development Act. This is a section of the California Civil Code, (3) the California Corporations Code, and (4) the California Code of Regulations. These laws do not include case law.

 

What do you need to restate our association's CC&Rs?

In addition to a signed fee agreement and the initial payment, we will need the following: (1) The current CC&Rs and any amendments, (2) The current Bylaws and any amendments, (3) The current Articles of Incorporation and any amendments, (4) The Condominium Plan, assuming the development is a condominium, (5) A recorded grant deed for any unit or lot, (6) A title insurance policy for any unit or lot, and (7) Any Master CC&Rs, if applicable.

If you cannot locate the condominium plan (if applicable), we can order it from the County Recorder's Office at the expense of the association as long as we have one exemplar of a recorded grant deed and one exemplar of a title policy.

 

What is the difference between Restated CC&Rs and Amended CC&Rs?

Restated CC&Rs refer to a complete replacement of your existing CC&Rs. Amended CC&Rs refer to selective modifications to your existing CC&Rs. CC&Rs that were recorded more than six years ago, generally need to be restated.

 

Is it important for the law firm restating or amending CC&Rs to have someone on their team with HOA management experience?

Absolutely. CC&Rs must be practical and designed to eliminate conflicts between individuals and homeowners and homeowners and the association. The Davis-Stirling Act is invaluable in that it provides us with most, but not all of the law. However, it does very little to provide guidance on how to minimize or eliminate management problems that arise regularly within homeowner associations.

 

Two years ago, I lived in a condominium association in Los Angeles. Our board hired an attorney to restate our CC&Rs which he did. Unfortunately, the members of our HOA did not vote to approve the updated document because many of them did not fully understand what they were presented and did not understand why many of the changes were made. The CC&Rs to be replaced were from 1990 so they were very obsolete. Now that I am on the board of another condominium association that needs restated CC&Rs, I don't want the same thing to happen. What do you suggest to maximize our chances of obtaining the approval of the homeowners?

Many attorneys are capable of drafting restated CC&Rs. However, after drafting the document, most of them deliver the restated document to the board and that's it. We have found this to be highly unsatisfactory and insufficient.

Whenever we restate CC&Rs for an HOA client, we always make ourselves available to answer homeowner questions via a Zoom meeting so that owners can be fully informed as to the reasons for every change. Homeowners are often surprised that more than 90% of the restated language in CC&Rs is mandatory based upon changes in the law. Once they understand that all owners are required to comply with the current law regardless of whether they approve the restated document, they understand why approval makes sense.

It is also important for homeowners to understand why insurance companies and mortgage lenders expect associations to have relatively current governing documents.

 

What is the additional fee if we want someone from your firm to be available by Zoom to answer questions about the proposed CC&Rs and explain changes that have been made?

Since we consider this service to be very critical to the approval process, we will spend whatever time is reasonably required for a fixed fee of $250. The fee applies per session.

 

What is a condominium plan and what does it include?

A condominium plan shall contain all of the following: 1) A description or survey map of the condominium project, which shall refer to or show monumentation on the ground; 2) A three-dimensional description of the condominium project, one or more dimensions of which may extend for an indefinite distance upwards or downwards, in sufficient detail to identify the common area and each separate interest; and 3) A certificate consenting to the recordation of the condominium plan that is signed and acknowledged.

 

What is a lot and block legal description?

A lot and block legal description includes a lot and block number, the name of the subdivision, the plat map information, and the place of official recording , which is usually the county recorder's office.

 

What is a metes and bounds description in real estate?

A metes and bounds description is a method of describing land boundaries using measured distances (metes) and directions (bounds) referencing natural, or more commonly, artificial landmarks such as a permanent monument placed by a land surveyor. Metes and bounds are used for land parcels that are irregular in shape or located in rural areas where subdivision maps have not been recorded.

 

Can your firm help us establish effective operating rules?

Absolutely. We have an extensive library of attorney-approved operating rules that can be made available to your homeowner association and can also create customized rules. See: Operating Rules Available for Associations.

 

What is the Hierarchy of Document Authority?

Following is the hierarchy:

1. Law (unless the particular statute defers to the governing documents.
2. CC&Rs.
3. Articles of Incorporation.
4. Bylaws.
5. Operating Rules.

• To the extent of any conflict between the governing documents and the law, the law shall prevail
• To the extent of any conflict between the articles of incorporation and the declaration, the declaration shall prevail
• To the extent of any conflict between the bylaws and the articles of incorporation or declaration, the articles of incorporation or declaration shall prevail.
• To the extent of any conflict between the operating rules and the bylaws, articles of incorporation, or declaration, the bylaws, articles of incorporation, or declaration shall prevail.

Conflicts between provisions in the same document can usually be settled by applying general rules of interpretation.

 

Are CC&Rs easily challenged if they are unreasonable?

No. California courts have consistently ruled that CC&Rs are presumed to be reasonable. Only if they are discriminatory can they be overturned as to the provision. Operating Rules of an association do not carry such a presumption and can be challenged. The court has discretion to determine whether they are reasonable.

 

What does "constructive notice" mean in connection with CC&Rs?

Constructive notice is a legal construct or legal fiction where the law assumes a person has knowledge of facts even if they have no actual knowledge of the facts. The legal fiction operates on the principle that certain information is publicly available or accessible in a way that it should have been discovered through a reasonable search. Recorded documents on an owner's property fall into this category. Owners have constructive knowledge of the CC&Rs recorded against their property even if they have not read the document.

 

Why do some older CC&Rs require a percentage of the secured first deed of trust lenders to approve certain amendments to CC&Rs?

Some attorneys have included such language without any input from any of the secured lenders because they thought it would be wise to do so. Historically, when secured lenders have been contacted for the purpose of seeking approval to restate or amend CC&Rs, 99% of more of the time they don't respond. Most of the time, the only amendments that require approval are: (1) eliminating or reducing insurance requirements for owners, (2) permitting the dissolution of the association, (3) eliminating maintenance obligations, and (4) reducing penalties for violations. When an association wishes to restate its CC&Rs, it should be careful not to make changes that will lessen the rights of secured lenders.

 

You probably work with lots of HOA management companies. Can you give our HOA board some advice on interviewing them?

Yes, See: Questions to Ask an HOA Management Company Before You Hire Them.

 

Our association in Studio City has recently adopted an amendment to our CC&Rs that requires purchasers of homes in our community to put at least 25% down. The intention is to discourage buyers who cannot afford to pay our association's assessments. We are tired of dealing with delinquency problems. Is this amendment enforceable?

Probably not. Courts will not enforce unreasonable restraints on alienation (the sale or leasing of property). A 25% down payment requirement will probably be considered unreasonable because most lenders do not require such large down payments or equity positions.

 

We were about to make an offer to purchase a condominium in Los Angeles when we learned that the board's attempt to get restated CC&Rs failed to get approved. The existing CC&Rs were recorded in 1998 so they are totally obsolete and do not reflect the current laws. The proposed CC&Rs are in no way harmful to the membership, make many improvements, and most importantly, reflect the current laws. There is really no good reason for members of the association to vote them down other than ignorance. I am concerned and would like your opinion.

I would recommend that you purchase a condominium in another community. The type of community you have described is not a good place to invest your money. There are many condominiums on the market where the membership understands the value of modern CC&Rs.

 

Someone just moved into our condominium association in Los Angeles, with a large pitbull dog. It hasn't attacked anyone, but it is very aggressive and nearly everyone is concerned about it. Our CC&Rs are silent on the subject except for permitting members to own up to two domestic animals. What should we do?

It would have been easier to prevent this problem by amending your CC&Rs before the pitbull was brought onto the property. Attempting to deal with the problem after the fact is much more difficult, but not impossible. The dog may constitute a nuisance which is probably a violation of your CC&Rs. More facts are needed to adequately answer your question. The lesson is clear, however: It is far better to address these types of issues with a CC&R amendment before the anticipated problem becomes a real problem.

 

Our management company recently recorded an assessment lien against the property of a delinquent homeowner. Before recording the lien, they carefully read the CC&Rs and then followed the requirements only to find out afterwards that the CC&Rs were outdated and did not reflect the current law. As a result, we were sued by the delinquent homeowner and forced to pay a large sum of money to settle the case. Can we recover from our management company?

I believe you have a good negligence case. Your management company fell below the standard of care by failing to comply with the current legal requirements. The recordation of liens can have serious consequences and should be supervised by an expert.

The situation you have described clearly illustrates the importance of amending your association's CC&Rs in order to make certain they reflect the current law.

 

Can our homeowner association establish a rule that prohibits smoking in the common area?

In the absence of a provision in your CC&Rs that prohibits such a rule, the answer is yes. Directors of association boards have the right to make rules governing the use of the common area so long as they are legal and not inconsistent with the CC&Rs. Keep in mind that such a rule can be over turned by a subsequent board of directors, and consequently, an amendment to your CC&Rs would make more sense if you want a long-term ban.

 

Can our condominium association amend its CC&Rs to make every condominium owner responsible for interior damage caused by water intrusion?

Yes. However, unit owners may still claim that the association is responsible for such repairs due to negligence.

 

When a sewer line leaks or breaks, who is responsible for the repair? Given that many sewer lines are located under concrete slabs and mature landscaping that may include several mature trees, the cost can be huge.

The CC&Rs of every common interest development should address this subject, but unfortunately, many older documents are ambiguous, leading to disputes and even litigation. While disputes and litigation are never good, the timing could not be worse when a sewer line or lines are leaking or broken. It is for this reason that board members are encouraged to make certain that the responsibility for such repairs is clearly and unambiguously set forth in the association's CC&Rs before a break or leak takes place.

 

Can our HOA increase the number of directors without restating or amending our association's bylaws?

No. You will be required to amend or restate the bylaws of your HOA. See: Increasing or Decreasing the Number of Directors.

 

We are not happy with the requirement in our bylaws that requires cumulative voting. Can we amend our bylaws to delete this requirement without making any other changes?

Yes. This is a common complaint that requires only a simple amendment. Call us for assistance.

 

I intend to sue my homeowner association for failing to enforce the CC&Rs against another member who has created a serious nuisance. Can I get reimbursed for legal fees?

Probably. The California Civil Code states that in any action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney's fees and costs.

 

Our association board is very concerned about the safety of the children living within our condominium complex. Can we create a rule prohibiting children from skateboarding within the common area?

Such a rule would be considered discriminatory. A rule prohibiting all persons from skateboarding would be enforceable.

 

Our condominium association would like to delete all references to the declarant and developer from our CC&Rs. The references create confusion and make the document difficult to read and interpret. When are we able to do this?

Homeowner associations can delete references to the declarant/developer once all construction has been completed and the developer has completed all marketing activities for the sale or leasing of the units or lots. Given that the Davis-Stirling Act is constantly being added to or revised, you should consider an overall update of your CC&Rs when you delete the references to the declarant developer.

 

Can we amend the CC&Rs of our association to prohibit owners from obstructing views of neighboring properties?

Yes. After an attorney drafts an appropriate amendment, the proposed amendment must be approved by a quorum of the membership using the two envelope, secret ballot process. See: Voting to Protect Views in Community Associations.

 

Our association's water bills have dramatically increased over the last few years. Can our community association amend our CC&Rs to prohibit the washing of cars in the common area?

Yes. Your HOA can prohibit members from using the common areas to wash vehicles, boats and trailers. It can also prohibit members from using common area water for such purposes. Since car washes recycle their water, utilizing a car wash saves water and it transfers the cost to the users.

 

We live in a large town home development. My neighbor has been in violation of the CC&Rs for several years. The homeowner association has taken no action and probably will take no action in the future. How long do I have to start an action against my neighbor for violation of the CC&Rs?

You have five years from the time you discovered, or through the exercise of reasonable diligence, should have discovered, the violation. However, your neighbor may have other defenses. Consequently, the matter should be reviewed by an association attorney at the earliest possible time in order to make certain that your rights are not extinguished.

 

My twenty-year-old condominium in Los Angeles is located on a large slope which means that part of my living room is below grade. The wall has been leaking for five years because of poor water proofing. I have complained to the board but they refuse to spend the money for repairs since I am the only owner with this problem. What can I do? I am certain the wall is full of mold. I cannot sell my unit under the circumstances and I have been turned down for a lower interest rate loan because of the problem.

If your CC&Rs are written like most, the HOA is responsible for the repair. There is no reason for you to suffer any longer. Experienced HOA attorneys may represent you on a contingency basis and may advance all or some of the costs required.

 

The board of directors of our homeowner association in Long Beach is permitting members of our association to grow ivy on the exterior stucco of our buildings. The stucco is common area that must be repaired by the association if the ivy damages it. Since I don't want to be responsible to pay for stucco repairs through my association dues in the future, what should I do?

First, point out to your board the specific provisions in your CC&Rs (Covenants, Conditions and Restrictions) that obligate the association to maintain the stucco. Next, point out the fact that the future stucco repairs are only one potential liability being created by permitting the ivy to grow on the stucco. When ivy or other vines cause the water-proofing quality of stucco to be destroyed, moisture can enter the buildings causing substantial interior damage, including but not limited to mold infestation. Some molds are highly toxic resulting in immune system disorders and other serious medical problems. In short, your board is assuming a big and unnecessary risk by allowing ivy or other plant materials to grow on the stucco.

 

What is an annexation of land and how does it work?

An annexation of land takes place when a developer builds a large development in phases. See: Annexation of land.

 

Can the buyer of a condominium unit be held responsible for architectural violations in that unit that existed prior to their acquisition?

Yes. The homeowner association has the right to require the new owner to correct the violation even though he or she did not create the violation. If the seller failed to disclose the existence of the violation, the seller can be held liable for costs/damages, including attorney fees, if a lawsuit is filed against the seller and the buyer proves his or her case. Violations follow the property.

 

What is a Master Community Association and how are they different from standard community associations or homeowner associations?

According to the California Department of Real Estate (DRE), Master Community Associations apply to associations that are 500 or more separate interests. See: Master Community Associations.

 

What is the Uniform Common Interest Ownership Act?

The Uniform Common Interest Ownership Act (UCIOA) is a law that governs the formation, management, and termination of comm n interest developments. It was designed to serve as a model statute that individual states an use to base their own common interest development laws. It was prepared by me Uniform Law Commission in 1982 and was amended in 1994. California does not follow the UCIOA. It utilizes the "Davis-Stirling Common Interest Development Act" also known as the Davis-Stirling Act.

 

Do you represent clients in claims against insurance companies for bad faith?

Yes. While insurance companies don't often commit bad faith actions, we do represent clients in bad faith claims against their insurance carriers when they act in bad faith. See: Insurance Company Tricks.

 

What is a Ratio Utility Billing System (RUBS) and can it realistically save our HOA and its members significant money every month?

Yes. A ratio utility billing system (RUBS) is a method or system that can be used in condominium associations to allocate utility costs among units. This is a far better alternative to paying the cost of installing individual meters for each unit which can be very costly. A ratio utility billing system can fairly allocate the cost of water, sewer, gas, common area electricity, and trash to each condominiums unit depending upon the formula the agreed.

It is no secret that utility costs are increasing substantially every year requiring boards to increase their association budget each year in order to remain solvent and not eat into reserves.

With a ratio utility billing system, increases in utilities require nor increase in the association's budget because increases in cost are automatically passed through to the owners as soon as they take place, they are not part of the budget.

Utilities can be allocated based on a number of factors including the number of residents in each unit, the number of bedrooms, the number of bathrooms, the number of water fixtures or the square footage of the unit. If preferred, a combination of factors can be used to develop a fair formula .

In addition to the fact that the cost of utilities is constantly and exponentially increasing, it is a fact that many owners and tenants do not conserve water and power when they never see an invoice for the cost or these services. In addition, a monthly invoice for utilities can be passed on to tenants who are renting a unit as part of the lease agreement. This helps both the owner and association save money.

Implementing a RUBS program encourages conservation because it makes owners aware of their monthly consumption and therefore encouraging conservation. RUBS is also a fair program eliminating situations where a single owner of a unit pays the same amount for water and other utilities as an owner with three or four residents.

While the normal cost of billing each unit must be considered , there is a cost to amend the association's CC&Rs to permit the association to separately assess each unit for utilities.

Please call us to set up a Zoom meeting to discuss setting up a RUBS program for your condominium association. You can start saving money almost immediately.

 

Your FAQs were very helpful. Can we call if we have additional questions?

Absolutely. Our regular hours are from 9:00 am to Noon and 1:00 pm to 5:30 pm. We can also be available in the evening or on Saturdays by appointment.